Opinion
No. CV-05-5000158
July 26, 2010
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT — #135
I. Nature of the Proceedings
This case arises out of injuries allegedly sustained by the plaintiff, Richard Read, on July 14, 2003, as a result of a fall into a movable dumpster located at a transfer station in the town of Plymouth (town). In his second revised complaint dated June 16, 2005, (the operative complaint), the plaintiff alleges, inter alia, that while he was attempting to dispose of waste materials into the dumpster, he tripped on a broken concrete path which also formed part of the wall of the trash bin.
This suit was filed in February 2005, however, the case ultimately went to summary judgment and was then appealed by the plaintiff. On October 7, 2008, the appellate court reversed the trial court and remanded the case to this court for further proceedings. Read v. Town of Plymouth, et als., 110 Conn.App. 657 (2008). The issues addressed and decided by the appellate court will be hereinafter discussed.
The plaintiff brings this action in eight counts against the town, Ralph Zombouski, the former director of public works, and Gary Belanger, an employee of that town department. The first three counts are brought against the town only. The first count is based upon common law nuisance. The second count is brought pursuant to the municipal defective highway/bridge statute, General Statutes Sec. 13a-149. The third count is based upon General Statutes Section 13a-152 which deals with a municipality's obligation to install railings and fences on the sides of certain roads and bridges. The fourth and fifth counts are brought against each of the town employees based upon their alleged negligence. The sixth, seventh and eighth counts, each of which are brought against the town and Zombouski, are based on specific portions of General Statutes Sec. 52-557n, the municipal liability statute, which was enacted by the General Assembly as part of the Tort Reform Act of 1986. Additionally, the eighth count includes a claim against the town and Zombouski brought pursuant to the defective highway statute.
Sec. 13a-149 provides, in pertinent part:
Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. No action for any such injury sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury. No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation.
II. Prior Proceedings A. In the Trial Court Before the Appeal
On June 29, 2005, the defendants filed a motion to strike the first, third, fourth, fifth, sixth, seventh and eighth counts of the operative complaint on the basis that the defective highway statute, Sec. 13a-149, as alleged in the second count, was the exclusive remedy for the plaintiff's claim. In addition the defendants argued that the fourth and fifth counts were legally insufficient because the individual defendants were entitled to governmental immunity. By Memorandum of Decision dated January 9, 2006, the court (Shapiro, J.) granted the defendants' motion to strike in its entirety on the basis that the defective highway statute provided the exclusive remedy against the town. The court also granted the motion to strike the fourth and fifth counts on the additional ground of governmental immunity. The plaintiff did not file a substitute pleading, but did preserve his right to appeal, whereupon the court subsequently entered judgment for the defendants on the stricken counts. On September 25, 2006, after the pleadings were closed on the then sole remaining count, the town, the then sole remaining defendant, moved for summary judgment with respect to the second count of the operative complaint on the basis that the plaintiff's injury did not occur on a public highway and that the claim, therefore, was not within the purview of § 13a-149. By memorandum of decision dated January 18, 2007, the court (Shapiro, J.) granted the motion for summary judgment, reasoning that because the transfer station was limited to residents of the town of Plymouth who had permits, the transfer station was not a public highway and, consequently, did not fall within Sec. 13a-149. The plaintiff then appealed.
B. The Appellate Court's Opinion
The plaintiff argued that the trial court had improperly struck count one and counts three through eight because the plaintiff had validly plead these counts in the alternative to count two. Furthermore, he argued that the granting of summary judgment on count two was improper because there was a question of fact as to whether he was on a public highway when he fell. In a split decision of the three member panel, the appellate court found that "[b]ecause, in this case, it was not clear when the court struck the subject counts that the plaintiff's claim was within the purview of the defective highway statute, his complaint properly contained alternative theories of recovery. Consequently, the [trial] court improperly struck the first, third, sixth, seventh and eighth counts of his second revised complaint on the basis of yet undetermined facts regarding the applicability of the defective highway statute." Read v. Town of Plymouth, 110 Conn.App. 662. The appellate court did not address the granting of the motion to strike with regard to counts four and five because "[a]lthough the plaintiff nominally has challenged the court's ruling on the motion to strike in its entirety, he has offered no argument in opposition to the [trial] court's finding of governmental immunity as to the fourth and fifth counts." Id., at page 661, n. 3. However, with regard to the plaintiff's argument that he had fallen on a public highway, the appellate court was unpersuaded. It found that "[b]ecause there was no factual dispute that access to the transfer station was restricted and was, therefore, not open to the public, the court properly determined that the plaintiff's claim did not fall within the purview of the defective highway statute, § 13a-149." Id., at page 666. As a result of this decision, counts one, three, six, seven, and eight of the revised complaint are now the only counts before this court. On December 3, 2008, the supreme court denied the plaintiff's petition for certification for appeal on the defective highway issue. 289 Conn. 955.
C. Post Appellate Proceedings
On October 20, 2009, the defendants filed a motion for summary judgment (#135) relative to all the remaining counts along with a memorandum in support thereof, an affidavit dated October 9, 2009, authored by Zombouski and several trial court cases. On April 1, 2010, the plaintiff filed his objection (#137) and an oppositional memorandum. The court heard argument at short calendar on June 1, 2010. After an extensive review of the court file, in particular, the allegations contained in the plaintiff's complaint, the appellate decision, the memoranda and accompanying documents filed by each of the parties, the cases cited by each and giving due consideration to the arguments of counsel, the court will, for reasons hereinafter stated, grant the defendants' motion for summary judgment in its entirety.
III. Summary Judgment
"The law governing summary judgment and the accompanying standard of review are well settled. Practice Book § [17-49] requires that judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A material fact is a fact that will make a difference in the result of the case . . . The facts at issue are those alleged in the pleadings . . . In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . ." Tuccio Development, Inc. v. Neumann, 111 Conn.App. 588, 593-94 (2008).
IV. General Statutes Sec. 52-557n
As noted counts six, seven and eight are brought by the plaintiff pursuant to Sec. 52-557n, which provides:
(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by:
(A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties;
(B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit; and (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance; provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149. (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct; or (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law. Emphasis added.
The seventh and eighth counts of the operative complaint each implicate subparagraph (1)(A) and (2)(B), while the sixth count is brought pursuant to subparagraph (1)(C). As will be hereinafter explained the resolution of the sixth count (statutory public nuisance) will resolve the issues raised by the first count (common-law public nuisance).
V. The Nuisance Counts (Counts One and Six) CT Page 15296
The appellate court considered the first and sixth counts of the operative complaint as causes of action based upon nuisance. The first count, based upon statutory nuisance, is brought against the town only. In paragraph #3, the plaintiff alleges that he "fell as a result of a broken/separated concrete stone block, which formed a platform/wall." In paragraph #5 the plaintiff further alleges that: "the operation of the transfer station was open to the public with unguarded dumpsters located many feet below the grade of the elevated parking area and had a natural tendency to create danger and inflict injury on members of the public by failing to erect appropriate guards, railings, barriers, fencing and or other such protective devices." The sixth count, which is brought against the town and Zombouski, is based upon common-law nuisance; it makes no mention of the broken concrete path upon which the plaintiff allegedly tripped. In paragraph #6 the plaintiff alleges the lack of a barrier or railing over the dumpster and the failure to erect warning signs as the basis for his claim. Notably, paragraph #11 of his common-law nuisance count contains allegations which are identical to those in the sixth count, which is the plaintiff's negligent count brought pursuant to Section 52-557n(a)(1)(A).The defendant correctly asserts that the crux of the plaintiff's claim is that he fell due to the deteriorated condition of the concrete path which formed the wall of the dumping area and that the town should have erected a railing or installed other appropriate protective devices to prevent the plaintiff from falling ten feet down into the dumpster. The defendant, citing, inter alia, Lukas v. New Haven, 184 Conn. 205, 209-10 (1981), argues that based upon these allegations, summary judgment in its favor is warranted as they are not predicated upon positive acts by the municipality in creating the alleged nuisance. According to the town, rather than alleging positive acts, the plaintiff is alleging failure to remediate the alleged dangerous condition, which will not under Connecticut municipal law support either an action based on common-law nuisance or one that is brought pursuant to this statute.
The plaintiff counters that he has alleged that the town designed a defective and dangerous structure, i.e., the entire transfer station, and engaged in a deliberate act in doing so and in designing it without constructing a railing above the dumping area. The plaintiff argues that the aforementioned actions on the part of the town were positive acts that created an actionable nuisance.
Recently our supreme court has had occasion to address a claim of public nuisance. In Picco v. Town of Voluntown, 295 Conn. 141 (2010), the plaintiff sought to recover money damages against the town as a result of injuries sustained by her when a portion of a rotted tree fell on her while she was watching a soccer game at a local school field. The plaintiff alleged that the tree had a natural tendency to pose a danger due to its size and certain structural defects, defects of which the town had become aware as its employees had previously evaluated the condition of the tree. The specific issue which was presented to the court on appeal was whether the town could be held liable pursuant to Sec. 52-557n(a)(1)(C) for damages caused by its failure to act in order to abate the alleged public nuisance. Justice Zarella, writing for the full court, first described, at page 146, the long-standing common-law relating to public nuisance:
"This court has stated often that a plaintiff must prove four elements to succeed in a nuisance cause of action: (1) the condition complained of had a natural tendency to create danger and inflict injury [on] person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of the plaintiffs' injuries and damages." (Internal quotation marks omitted.) Pestey v. Cushman, 259 Conn. 345, 355, 788 A.2d 496 (2002). In addition, when the alleged tortfeasor is a municipality, our common law requires that the plaintiff also prove that the defendants, by some positive act, created the condition constituting the nuisance. See, e.g., Wright v. Brown, 167 Conn. 464, 470, 356 A.2d 176 (1975). Emphasis added.
The court then found, by statutory interpretive analysis, that the legislature intended to codify the common-law of public nuisance when it enacted subparagraph (C) of the statute. Thus, the legal principles that apply to common-law nuisance are also applicable, by virtue of this appellate opinion, to an action brought under the statute. The court held that the trial court properly granted the town's motion to strike the nuisance count as the plaintiff had not alleged any facts that indicated that the town created the alleged nuisance by some positive act. The court found, in particular, that the evaluation of the tree did not create the condition that caused the plaintiff's injuries, i.e. the rotted tree; that condition was created by "natural tendencies." Id., at page 152.
In Lukas v. New Haven, 184 Conn. 205 (1981), the plaintiff sued the city as a result of injuries sustained when he slipped and fell on ice while retrieving his trash barrel. The plaintiff argued that the icy condition that caused his injury constituted a public nuisance that was intentionally, i.e., via a positive act, created and maintained by the city. The plaintiff alleged that it was the city's practice to plow the center of the street, a one-way street with sanctioned parking on both sides, thus creating icy ruts on the unplowed areas. The plaintiff claimed, therefore, that the condition in which the city repeatedly left his street had a tendency to inflict injury upon individuals when the city knew that the residents thereof, such as the plaintiff, were forced to traverse the area in order to retrieve their trash barrels. In its per curiam opinion, the court rejected the plaintiff's argument, pointing out that the "condition" that caused the injuries, i.e., the icy rut, was "essentially natural in origin" and was not of the city's making. Id., at page 210.
In this case, the plaintiff has failed to cite any case, that would support his position that the alleged defective design of the entire transfer station would under Connecticut municipal law constitute the requisite positive act, particularly, in light of the fact, based upon his own allegations, that the fall into the dumpster was created by the deteriorated concrete walkway above the dumping area. As the supreme court reasoned in Lukas and Picco, in order to justify a finding by a trier of fact that a municipality created a public nuisance, the plaintiff must allege and prove that the condition which caused the plaintiff's injuries was put there by some positive act of that municipality. It is clear to this court that the crumbled concrete path, which was the proximate cause of the plaintiff's fall, was not created by the manner in which the transfer station was designed. The condition, which allegedly caused the plaintiff's injury was created by the deterioration, be it from weather conditions or overuse or lack of maintenance, of a concrete walkway that over the years of its use was subjected to ordinary wear and tear. In light of the cited cases, and the allegations contained in the first and sixth counts of the plaintiff's complaint there is simply no evidence from which a trier of fact could conclude, as a matter of law, that the alleged dangerous condition that caused the plaintiff's injuries was created by some positive act of the town. Summary judgment is therefore warranted as to each of these counts.
VI. Negligence (Count Seven)
The seventh count of the operative complaint is brought pursuant to subparagraph (a)(1)(A) of the statute and is therefore based on a claim that the town and Zombouski were negligent in causing the plaintiff's fall and resulting injuries. Specifically, in paragraph #7 of said count the plaintiff alleges that:
The eighth count, which combines identical claims of negligence with a claim pursuant to the defective highway statute will be hereinafter addressed.
a. [T]he ramp to the dumpster at the landfill was not in a reasonably safe condition due to the failure to erect or maintain a railing, fence and/or barrier approaching at the elevated roadway;
b. [T]he defendants failed to warn users, particularly the plaintiff, of said unsafe conditions;
c. [T]he defendants permitted said unsafe conditions to remain without any barriers, signs, or warnings whatsoever;
d. [T]he defendants failed to repair or remedy said unsafe conditions;
e. [T]he defendants failed to inspect, or reasonably inspect, said ramp approaching the dumpster at the transfer station; and
f. [S]aid ramp approaching the dumpster at the transfer station was permitted to remain in an unsafe condition for an unreasonable period of time.
The defendant asserts that all of the above specifications of negligence involved discretionary duties, which under appellate court decisions and as provided in subparagraph (2)(B) of the statute preclude this court from holding the town liable to the plaintiff for the negligent acts or omissions that are alleged. The defendant argues that each of the duties allegedly breached involve the exercise of judgment and are therefore protected by governmental immunity. The defendant correctly points out that the plaintiff has not alleged that any of the duties breached by the town and Zombrouski were to be performed in a prescribed manner or that a then existing ordinance, regulation or policy dictated the manner of performance. That omission, the defendant asserts, is fatal to the plaintiff's cause of action under this count.
In response the plaintiff argues that if the court views the evidence in a light most favorable to the plaintiff, there remains a genuine issue of material fact which would preclude the court from granting summary judgment to defendant. The plaintiff refers to paragraph #10 of Zombouski's affidavit wherein the former director of public works avers:
The Town of Plymouth did not create the condition alleged by the plaintiff in the complaint as a "broken/separated concrete stone block." The blocks in the retaining wall were not originally broken or separated. Further, there was a Service Request System in place at the time. Prior to the alleged fall, no complaint or requests for service had been made with regard to the allegedly broken/separate concrete stone block. Emphasis added.
The plaintiff therefore asserts that the existence of the service request system referred to by Zombouski could reasonably be found by a trier of fact to constitute the requisite policy or directive, thereby removing from the town the protective veil of governmental immunity. In an argument based upon fairness and logic the plaintiff offers the following:
Moreover it is imperative that the case proceed to the merits to avoid the previous quandary that was relieved by the Appellate Court. It is simply not logical that based upon every theory put forth there is no liability to be had for the poor design, maintenance and upkeep of a facility solely based upon the fact that it is on public property. A municipality should not be allowed to get out of any and all liability for all circumstances based upon calling any action within the municipality by its employees, agents or assignees a "discretionary act."
"While [a] municipality itself [is] generally immune from liability for its tortious acts at common law . . . its employees [face] the same personal tort liability as private individuals . . . [A] municipal employee [however] has a qualified immunity in the performance of a governmental duty, but he may be liable if he misperforms a ministerial act, as opposed to a discretionary act . . . The word `ministerial' refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." (Citations omitted; internal quotation marks omitted.) Evon v. Andrews, 211 Conn. 501, 505 (1989).
"Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature . . . The hallmark of a discretionary act is that it requires the exercise of judgment . . . In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318 (2006). "Discretionary act immunity reflects a value judgment that — despite injury to a member of the public the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury . . . In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion . . . This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts." Id., 319. The supreme court has found acts to be discretionary in nature where the plaintiff has failed to allege that the defendant employee was "required by any city charter provision, ordinance, regulation, rule, policy, or any other directive;" Id., 323; to perform these acts or omissions.
In this case, nowhere in the seventh count does the plaintiff allege anything more than the failure of the town and Zombouski to take certain alleged actions, each of which requires the exercise of judgment. Furthermore, while the plaintiff argues that the decision of the town not to repair the concrete was ministerial in nature, the court finds that this decision was discretionary. The town did have a system for requesting maintenance or service, however, whether the town would choose to respond to these requests and, if it did, in what manner it would respond were completely within the judgment, and, thus, discretion of the town's employees. As a matter of law, summary judgment is mandated on this count.
VII. General Statutes § 13a-152 (Count Three)
The plaintiff's third count was brought against the town pursuant to Section 13a-152 and is based upon the plaintiff's claim that the town had a duty to erect a railing or fence above the dumping area of its transfer station but failed to do so, which constituted a violation of said statute.
General Statutes Section 13a-111 provides in relevant part: "The party bound to maintain any bridge or highway shall erect and maintain a sufficient railing or fence on the sides of such bridge and on the sides of such parts of such road as are so made or raised above the ground as to be unsafe for travel." Section 13a-152 provides in relevant part: "Any person who suffers damage in his person or property by reason of the want of any railing or fence required by section 13a-111 may recover damages from the party required to erect and maintain the same . . ." According to General Statutes § 14-1(37), a `highway' includes `any state or other public highway, road, street, avenue, alley, driveway, parkway or place, under the control of the state or any political subdivision of the state, dedicated, appropriated or opened to public travel or other use . . .'" Read v. Plymouth, supra, 110 Conn. 665.
The defendants argue that the plaintiff's third count cannot stand because the area in question does not constitute a bridge or highway as contemplated by § 13a-111. Specifically, they argue that, as previously decided in this case by the appellate court, the definition of highway requires that it be open to the public. The town asserts that since the appellate court has found that the transfer station was not open to the public, but was a restricted access facility, no duty to construct a railing can be found under § 13a-111 and, therefore, no action for damages may be brought under § 13a-152. Read v. Plymouth, supra, 110 Conn.App. 666. In opposition, the plaintiff argues that summary judgment should not be granted on this count because the definition of public access in this case is a question of fact. It is the plaintiff's position that the term "public" is not defined in either of these sections and, therefore, a fact finder could determine that the term public could be limited to residents of the town who need access to this facility.
The appellate court, however, has addressed and decided this issue. "The plain meaning of the word highway is a main road or thoroughfare; hence, a road or way open to the use of the public . . . [I]t is a way over which the public at large has a right to pass . . ." (Internal quotation marks omitted.) Read v. Plymouth, supra, 110 Conn. 665. "The essential feature of a public use is that it is not confined to privileged individuals or groups whose fitness or eligibility is gauged by some predetermined criteria, but is open to the indefinite public. It is the indefiniteness or unrestricted quality of potential users that gives a use its public character." Id. (Quoting State v. Harrison, 30 Conn.App. 108, 118-19, 618 A.2d 1381 (1993), aff'd, 228 Conn. 758, 638 A.2d 601 (1994).)
"[T]he transfer station was a restricted access facility, the use of which was limited to permit-holding town residents who had registered their vehicles with the town. Furthermore, the transfer station was open during limited hours and, when closed, was restricted by means of a locked gate." Id., 666. "Because there was no factual dispute that access to the transfer station was restricted and was, therefore, not open to the public, the court properly determined that the plaintiff's claim [under count two for a highway defect] did not fall within the purview of the defective highway statute, § 13a-149." It follows that, because the transfer station is not a highway within the meaning of § 13a-111, no damages may arise pursuant to § 13a-152 and the plaintiff's claim must fail.
VIII. General Statutes §§ 13a-149 and 52-557n (Count Eight)
In the plaintiff's last count he alleges that the town and Zombouski, as its agent, had a duty pursuant to §§ 13a-149 and 52-557n to maintain, repair and keep reasonably safe for public use the streets and sidewalks within the transfer station. The count further alleges that due to the defendants' negligence, the plaintiff was caused to suffer a fall from a road. The defendants argue that summary judgment is proper because the area in question is not a public highway and cites the appellate court's previous decision in this case. Read v. Plymouth, supra, 110 Conn.App. 657, 666. The plaintiff's memorandum in opposition does not appear to directly counter the defendants' argument with respect to this count, but rather, groups this argument in with the previous arguments concerning § 52-557n and negligence, which discusses governmental immunity and discretionary duties.
"[A]ny person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair . . ." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 341, 766 A.2d 400 (2001). "We have construed § 52-557n . . . to provide that, in an action against a municipality for damages resulting from a highway defect, the defective highway statute is the plaintiff's exclusive remedy." (Internal quotation marks omitted.) Read v. Plymouth, supra, 110 Conn.App. 664. "Even if a plaintiff does not plead § 13a-149 as a means for recovery, if the allegations in the complaint and any affidavits or other uncontroverted evidence necessarily invoke the defective highway statute, the plaintiff's exclusive remedy is § 13a-149." Bellman v. West Hartford, 96 Conn.App. 387, 393-94 (2006). "The plain meaning of the word highway is [a] main road or thoroughfare; hence, a road or way open to the use of the public." (Internal quotation marks omitted.) Read v. Plymouth, supra, 665. "Because there was no factual dispute that access to the transfer station was restricted and was, therefore, not open to the public, the court properly determined that the plaintiff's claim [under count two for a highway defect] did not fall within the purview of the defective highway statute, § 13a-149." Read v. Plymouth, supra, 666.
Our case law requires that if a complaint alleges a defect in a highway, § 13a-149 is the exclusive remedy. Therefore, the plaintiff cannot bring this count pursuant to both § 52-557n and § 13a-149. Count eight of the plaintiff's complaint alleges, in essence, a defect in a highway. The complaint alleges "he fell from a road," his "injury was caused by a defective condition of the road," and is captioned "Defective Road, Connecticut General Statutes § 13a-149." The appellate court determined when examining the plaintiff's second count for a highway defect that the transfer station where the alleged injuries occurred was not within the purview of 13a-149 because it was not open to the public as envisioned by that statute. The only difference between count two and count eight is that count eight is worded against both the town and its agent, it includes allegations that the plaintiff was engaged in a public act while he was injured, and alleges that the defendants created the conditions that led to the plaintiff's injuries. However, there appears to be no legal distinction between the two in the actual legal claim brought. The question of law as to whether the transfer station falls within § 13a-149 has already been decided by the appellate court. It follows that, because the appellate court has already found that the highway defect statute is inapplicable in this case, summary judgment on this count is proper.
IX. Conclusion
For the foregoing reasons, the court will grant summary judgment on all counts remaining after the appellate court decision was rendered. The court will grant the defendants' Motion For Summary Judgment (#135) as to counts one, three, six, seven and eight. The court will find relative to each of those counts that there is no genuine issue of material fact that requires resolution by a trier of fact. As to the plaintiff's claim that it would be unfair and illogical to rule in the town's favor in light of the facts and circumstances of this case and to thereby leave this injured plaintiff without redress simply because the duties allegedly breached by the town were discretionary, this court will observe, with sympathy to the plaintiff's plight, that it may not seem fair, it may indeed lack a degree of logic, however, the result is consistent with legislatively enacted public policy and applicable legal precedent.
The plaintiff has not claimed that the identifiable person subject to imminent harm exception to municipal discretionary acts is applicable to the facts and circumstances of this case. See Durrant v. Board of Education, 284 Conn. 91, 95-96 (2007) (application of exception to case, wherein employees were named as defendants as well, arising from injuries sustained on public school property while plaintiff picked up her child from after school program); Swanson v. Groton, 116 Conn.App. 849, 859-62 (2009) (application of exception to case wherein intoxicated person stabbed rooming house manager after being permitted to return there by police officer, who was also named as defendant). However, in Grady v. Somers, 294 Conn. 324, 356 (2009), our supreme court held that the plaintiff, who was injured when he slipped and fell on ice at the transfer station operated by the town of Somers, was "not a member of a class of foreseeable victims because, as he acknowledges, he was not legally required to dispose of his refuse by taking it to the transfer station personally and could have hired an independent contractor to do so."